Abstract
I want mainly to say a little about the experiences that led me to write this book, experiences that may explain its title.
Although I have been a law professor for most of my professional life, I went to law school with the idea of being a practicing lawyer, and after graduation I practiced law in a small firm in Boston. I greatly liked and respected what I saw of American law in both contexts. I could see that law itself really mattered, and that it was especially important to do it well rather than badly, both in teaching and in practice. I thought the fidelities and understandings of a good lawyer were good for the world. Not that law was perfect, but that our work was in part a way of making both the law and the world better.
What I liked most about law was the activity of doing it, and trying to do it well, which was not just a matter of choosing and defending outcomes, but engaging simultaneously with the complex set of authorities that made up our world—from statutes and earlier cases to general understandings and shared ethical commitments—and with the facts of the case, including one’s sense of what justice required, now and in the future.
I thought good legal work could be done and should be done on both sides of a case, and if driven by the set of fidelities that defined our profession at its best, both sides would make the world better.
Another way to put this is that I was taught that I could rightly admire the work of a Judge or Justice with whom I disagreed as to the outcome of a case or as to the proper reading of past law. In fact, I admired Justice Harlan more than any other Justice, though I often disagreed with him as to the result he reached.
I left practice not because I did not like it, or to become a scholar, but in order to teach law, itself in my view a form of practice. Teaching law was an activity—full of interest, richness, difficulty, and importance—that I thought could justify a life.
But as the years went on, I gradually began to worry more and more about the health of law, both in law schools and in the world. To give you a sense of what I mean, I will describe some of the impressions I gradually formed, with heavy emphasis on the word “impression.” I cannot prove any of this; I am simply reporting the progress of my own sense of what law was becoming, the sense that led to this book.
A major concern had to do with what happened to the judicial opinion in the world and in law school. For me as a student, almost the whole enterprise of law school could have been summed up as learning to read and to judge judicial opinions—not in terms of their outcome but as ethical and intellectual performances. What we were taught to admire in the best opinions was not that they “came out” as one wished, but their way of creating and doing law. Reading them offered a real education, not just about an institution, but about thought and language and honesty and justice—and about reading and writing too—for all these were at stake in what the opinions did.
In those days, the work being done by the Supreme Court in particular seemed to warrant and reward this kind of critical attention.
But, over time, I got a sense that law school classes were devoted less and less to what makes good legal thinking, whether as judge or lawyer, than to questions of policy or theory.
As a consequence, instead of reprinting important parts of the judicial opinions, casebooks seemed to reprint smaller and smaller segments of them, often reducing the case to its bare facts, to be discussed as a kind of abstract example in the development of theory or policy. The kind of conversation and learning that focused on the judicial opinion and what it revealed about the legal process in which our students were to live, was on this basis no longer fully possible. For me, much of the air had been let out of the law school classroom.
I think the popularity of law and economics fed this tendency, not because there is anything wrong in bringing to the law what economics has to teach about economic questions that arise in law—that is of course fine, and the same would be true of other disciplines as well. The problem was that economics, in some hands at least, seemed to me not so much to want to enrich law as to replace it. The idea seemed to be that legal questions could best be decided by economic methods. But you cannot really do law in the language of economics any more than you can do economics in the language of the law.
My own experience of reading opinions, especially Supreme Court opinions, grew more and more disappointing. I increasingly had the sense that as I read an opinion I was not hearing from the Justice as an independent mind seriously engaged with the issues the case presented. Maybe this was because the clerk wrote most of the opinion, and the Justice signed off on it; maybe it was because the culture of the Supreme Court came to permit a Justice simply to rehearse a set of arguments for a desired result, as a (not very good) brief might do, without ever making the case and the opinion truly his or her own.
Whatever the reason, I felt that too many opinions were empty. What this meant for legal education and practice too was that we simply could not give to judicial opinions the kind of attention and respect that used to be so rewarding—attention that is necessary to their real authority.
In my view this was a failure of law. For a comparison, you might look at a volume of the Supreme Court Reports from the late fifties or early sixties, when I was in law school. I think you would find the difference shocking: of course, there were political and theoretical tensions among the Justices then, and other imperfections of various kinds, but I always had the feeling that I was being spoken to by the Justice in his own voice and in an authentic way. These were opinions one could respond to and work with.
Finally, I thought our legal and constitutional system was deeply threatened when I learned that our government not only lied systematically about the justification for its war against Iraq, but secretly tortured persons they had captured. Torture seemed to me hideous, inconsistent with law and justice in the most basic sense. Efforts were made to justify it by a corrupt form of the kind of “cost benefit analysis” that economics, in some hands at least, encouraged. In this case, it led to a crime against humanity.
When we add to all this the events of the last four years, it is clear that we are facing the possibility of a world of “law” in which there is no serious claim to justice, an element essential to the law I once knew.
Keep Law Alive is my response to the situation I describe. In it, I try to do three different things: to demonstrate what seems to me essential and good about the law we once had; to urge people of the law, and citizens more generally, to try to keep that tradition alive if they possibly can; and to address the question, What should we do if we fail?
In trying to define the kind of law we are losing, I focus not on such fundamental institutional elements as a democratically elected legislature; or a system of checks and balances; or the principles that no one should be detained without judicial review, that the law should be administered by an independent judiciary, or that legal process should be public—though all of these things are now under serious threat.
Rather, I am concerned with the activity of law itself: the complex intellectual, ethical, and imaginative activity at the heart of legal thought and practice, without which the principles I just mentioned would have little life or meaning.
In my book, the first example of the kind of law I admire is the Model Penal code, which provided a way of thinking about the criminal law, widely adopted by state legislatures all over the country, which made it both more intelligible and more fair. The second example is Justice Holmes’s famous opinions in the Schenck and Abrams cases, where, after a considerable struggle, he created a new role for the first amendment in our thinking and our life. The third example is an effort of my own to find a way to talk about the problem of race, especially in the context of what is called “affirmative action.”
Implicit in the three examples I have given is an idea about law: that the law is at heart not just a system of rules, as we often think of it; nor is it simply a set of institutional arrangements that can be adequately described in a language of social science; nor is it just the expression of policy choices; rather, it is an inherently unstable structure of thought and expression, built upon a distinct set of dynamic and dialogic tensions. These tensions do much to define the art of language at the heart of the law.
These tensions are not resolvable once and for all, but must be addressed freshly, over and over, by lawyers and judges who are responsible for what they do. They define much of the task of lawyer and judge.
I will briefly describe two of these tensions, to give you an idea of what I mean.
The first is the inherent tension between law and justice I just mentioned. There is an obvious and strong tension between them, kept alive by the fact neither is allowed dominion over the other. They stay in tension, for it is an unstated convention of our law that the lawyer on each side of the case must maintain that the result they are arguing for is both required by the law and fundamentally just.
The deep tension between these indispensable claims means that the lawyer or judge must labor, sometimes mightily, to harmonize them. In the process, it gives lawyer and judge alike the opportunity to create something new and alive—not merely the logical working out of rules or premises, but a deeper engagement with the texts of the past and the facts of the present, in a constant and unending search for valid and just meaning.
Another structural tension is that between legal language and ordinary language. Your client comes to you as one who tells his story in ordinary language, and who wants certain things, defined in that language, to happen. To be able to represent your client, you need to understand their language as well as you can. But you also know you will have to translate what they are telling you into a language that will not make much sense to them. Like other translations, this can never be done perfectly. The incongruity between these two languages is a challenge throughout the process of representation. It calls for an art of mind and language that can bring these two languages together. It has to be practiced again every day, always imperfectly.
I don’t have space to trace out other tensions that give life and structure to the law. But I can name a few of them briefly, leaving it for you to flesh them out in your own imaginations: between the letter and spirit of the law; between substance and procedure; between fact and law; between the present and the past (and the future); between reason and intuition; and between language itself and what cannot be expressed.
These tensions are structural, built into the process, resolvable only on the occasion at hand, and then always imperfectly. They demand from those who experience them, whether judges or lawyers, the exercise of an art—an art of language and mind and character. We should not find them daunting; quite the reverse, we should welcome them because each of them calls upon us to use our minds and imaginations, and our sense of justice too, in new and fruitful ways. These tensions are not as some might say, simply “noise in the system,” but the life of the law itself. They make it clear that, in doing law, we must be centers of energy, of invention, and of life.
This means that law is a rather fragile piece of our culture, requiring those who live with it to remake it constantly, over and over. Its existence should never be assumed or taken for granted. It is something we create and maintain when we act in its name. When we do it well, when we engage in law at its best, as I have tried to describe it, we do something of first importance. But the law does not act by itself; it needs us to keep it alive.